RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01137
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070126

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E2, Combat Engineer, medically separated for anxiety disorder, NOS [not otherwise specified], with a disability rating of 10%.

CI CONTENTION:  The CI made no specific contention, but listed PTSD, RPPS in right knee, sleep apnea and dysthymic disorder.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the Physical Evaluation panel (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the panel for Correction of Military Records.  Furthermore, the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20070108	VARD - 20090608	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Anxiety Disorder, NOS	9413	10%	Post Traumatic Stress Disorder	9411	NSC	NA	
			Dysthymic Disorder	9433	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  --	

ANALYSIS SUMMARY:  

Anxiety Disorder, NOS.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mental health condition began in April of 2004, after returning from a deployment to Iraq.  The panel did note at clinical visits for other conditions from September 2004 through March 2005, the CI denied any mental health symptoms on the routine screening accomplished as part of the history.  A review of the medication profile showed the CI started anti-depressant medication in March 2006.  There were no other clinical records regarding the depression in evidence.  During the 6 June 2006 MEB examination (recorded on DD Forms 2807 and 2808) 8 months prior to separation, the CI wrote he had been hospitalized for mental health issues 4 times the prior 2 months.  It was noted he was taking Zoloft (an anti-depressant) which was helpful.  A commander’s assessment dated 6 September 2006, recorded he could not perform his duties in a combat environment and he had been admitted for mental health issues on five separate occasions.  The 24 October 2006 MEB NARSUM examination, 3 months prior to separation, noted the CI self-referred to Behavioral Health in February 2006 due to complaints of depression and anxiety.  It was noted he redeployed in April 2004 and received two Article 15s: one for being late and another for being absent without leave (AWOL) for 3 days.  The CI reported depressive symptoms since childhood and that he was evaluated for being depressed and anxious prior to deployment.  These records were not in evidence.  He reported an increase in his symptoms following re-deployment.  He endorsed depressive symptoms, anger, irritability, and an increased startle.  Significant avoidance behavior was absent.  He did replay an incident from childhood in which he shot a young child and some intrusive memories from his deployment.  He had been hospitalized 4 times over the prior 8 months for symptoms of anger and thoughts of suicide.  Over the prior 6 months, his main stressor was interpersonal difficulties with his chain of command which increased as his unit prepared to deploy.  He also reported marital difficulties.  He reported a “30%” improvement in his symptoms after beginning medications.  He reported sleep was his biggest difficulty.  The Zoloft had helped with his depression and mood swings.  His anger and irritability persisted but were under much better control with the medications.  He was working in the rear detachment in an office setting.  No comment was made on his performance in this setting.  He was thought to be at high risk of decompensation if re-deployed.  On the mental status examination the mood was described as "OK"  His affect was mildly constricted.  He denied suicidal or homicidal ideation and auditory or visual hallucinations.  Thought content was normal and without apparent delusions.  At present, his judgment and insight appear adequate.  His cognition is grossly intact.  His symptoms resulted in a moderate to marked military impairment likely to result in mild to definite social impairment.  He was assigned a global assessment of function (GAF) of 65-70, indicative of some mild symptoms and/or difficulty with social and occupational functions.  

The MEB forwarded Dysthymic Disorder and Anxiety Disorder, NOS, for PEB adjudication.  An updated commander’s assessment was dated 29 November 2006.  It also noted the CI was admitted on 5 occasions the past year.  He was not able to perform his duties due to startle response.  The CI did not file a VA claim until 17 November 2008, over 2 years after separation.  He failed to report for the VA Compensation and Pension (C&P) evaluation scheduled on 22 May 2009.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the mental health condition 10%, coded 9413 (anxiety disorder, not otherwise specified), citing anxiety disorder associated with a dysthymic disorder which existed prior to the service (EPTS); however, no deduction was made for the EPTS component.  It was noted his anxiety had improved with the use of anti-depressant medications and removal from stressful situations.  The panel determined 10c. (disability a direct result of combat) was negative.  The VA did not service connect the mental health conditions.  

The panel first considered if the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable.  It noted the PEB attributed the anxiety disorder to the deployment as well as ongoing occupational and familial stressors and determined this satisfied the requirements of VASRD §4.129.  Accordingly, the panel recommended a 6 month constructive period of TDRL [Temporary Disability Retired List] with a 50% disability rating.  The panel considered if the criteria for a 70% rating were met, but noted that the CI was working in an office setting and reported that his symptoms improved.  His thought content was normal without delusions or suicidal ideation.  A 50% rating at TDRL placement is appropriate.  The panel then considered the permanent rating.  It noted the CI had been hospitalized at least 4 times since early 2006, but none occurred after early September.  The MEB NARSUM examiner, a psychiatrist, noted that the CI improved.  On the mental status examination, the CI denied suicidal ideation and had a normal thought content.  His social and industrial impairment was thought to be mild.  The subsequent commander’s statement noted an increased startle response, but made no comment on duty performance in garrison.  A 10% rating is supported by the use of continuous medications.  The criteria for a higher 30% rating include the intermittent inability to perform occupational tasks.  While the CI was admitted on multiple occasions, the record shows he was doing relatively well with mild impairment at the time of the NARSUM and there was no record of any hospitalizations or emergency room visits after the initial commander’s assessment in early September 2006, 5 months prior to separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 6 month constructive TDRL period for the anxiety disorder condition with a disability rating of 50%, followed by a permanent 10% rating, coded 9413  

BOARD FINDINGS:  In the matter of the Anxiety disorder condition, the panel unanimously recommends a disability rating of 50% for a constructive 6-month TDRL period followed by a permanent 10% rating, both coded 9413 IAW VASRD §4.129 and 4.130.  There were no other conditions within the panel’s scope of review for consideration.  The panel recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Anxiety Disorder, NOS	9413	50%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005808, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of your original medical separation for disability with severance pay and then following this six month period your disability rating should be modified to 10% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  

The constructive TDRL period will result in an adjustment to your pay providing you 50% retired pay for six months from the date of your original medical separation and then modification of the permanent disability rating to 10%.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	The accepted DoD PDBR recommendation has been forwarded to the 
Army Physical Disability Agency for required correction of records and then to the 
U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the XXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure